BURDETTE v. HOLLINGSWORTH

Filing 7

OPINION. Signed by Judge Renee Marie Bumb on 5/2/2017. (tf, n.m.)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
________________________
WILLIAM BURDETTE,
Petitioner,
v.
WARDEN J. HOLLINGSWORTH,
Respondent.
________________________

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Civ. No. 16-142 (RMB)

OPINION

BUMB, United States District Judge
Petitioner

filed

a

Petition

for

Writ

of

Habeas

Corpus

pursuant to 28 U.S.C. § 2241 (Pet., ECF No. 1), seeking relief
from expulsion from the Residential Drug Abuse Program (“RDAP”)
at FCI Fort Dix, and transfer to another facility.
15.)

Respondent

filed

a

Response,

opposing

(Pet. at

habeas

relief.

(Government’s Response to Petition for Habeas Corpus Pursuant to
28 U.S.C. § 2241 (“Gov’t Resp.”, ECF No. 5.)
Reply.
I.

Petitioner filed a

(Petr’s Reply, ECF No. 6.)

BACKGROUND
Petitioner was sentenced on June 20, 2008, in the United

States District Court for the District of Maryland, to a prison
term

of

135-months

with

supervised

release

for

life,

upon

conviction for transportation of child pornography in interstate

and foreign commerce by means of computer, in violation of 18
U.S.C. § 2256.

United States v. Burdette, No. 07 Cr. 318 (D.

Md.) (Docket No. 27).

Petitioner is presently confined in FCI

Ft. Dix. (Pet., ECF No. 1 at 2.)

Assuming the maximum possible

good-conduct time, his projected release date is May 16, 2018.
(Declaration of Tara Moran (“Moran Decl.)”, ECF No. 5-2, Ex. 1.)
On June 11, 2014, Petitioner signed a document entitled
“Agreement to Participate in a Bureau of Prisons Residential
Drug Abuse Treatment Program.”

(Declaration of Joshua Houseman

“Houseman Decl.”), ECF No. 5-1, ¶3; Ex. 2.)
participate
participate

in
in

RDAP,

Petitioner

treatment

was

activities,

By agreeing to

expected

refrain

to

from

fully

disruptive

behavior, and follow all BOP policies, rules, and regulations.
(Id.) If he withdrew or was expelled from RDAP, the Agreement
contained a warning that he would lose all incentives, including
any potential early release.

(Id.) Petitioner also signed the

RDAP “Code of Conduct,” which warned that Petitioner could be
expelled for unacceptable behavior.
Prior
Petitioner

to

beginning

signed

Expectations,”

the

which

the

program,

“Residential
notified

(Id., ¶4; Ex. 3.)

him

on

March

Drug

Abuse

that

he

was

23,

2015,

Program

Phase

required

to

demonstrate specific behavioral changes to successfully complete
RDAP.

(Id., ¶4; Ex. 4.) He commenced RDAP on April 3, 2015.

(Id., ¶5; Ex. 1.)
2 

On July 15, 2015, Petitioner met with the RDAP clinical
team to discuss his lack of progress in treatment.
Decl.,

¶6;

Ex.

5.)

responsibility,

The

team

entitlement,

emphasized

his

justification,

(Houseman
“isolation,

mollification,

communication deficits, poor/aggressive body language, struggle
with

being

receptive,

Petitioner

was

behaviors.

(Id.)

and

confronted

social
by

rule

staff

breaking.”

and

peers

(Id.)

for

these

He tended not to interact with a majority of

the community, limiting himself to a few peers all of whom had
similar behaviors, criminal tendencies, and beliefs. (Id.) The
following actions were taken: (1) he was given a wristband to
signify he was struggling with the program; (2) he was given a
formal warning; and (3) additional activities were added to his
treatment plan.
On

July

(Id.)
24,

2015,

Petitioner

led

a

discussion

group, asking for feedback on his negative behaviors.

in

his

(Id., ¶7;

Ex. 6.) The group gave Petitioner examples of his behavior,
including

isolation,

entitlement,

and

poor

investment

in

treatment. (Id.) His reaction was to rebut or challenge his
peers.

(Id.)

This information was relayed to the rest of the

BOP drug treatment staff.

(Id.)

The clinical staff again met with Petitioner on July 30,
2015.

(Id. ¶8; Ex. 7, 8.)

They noted that Petitioner had not

demonstrated progress and had not met expectations in any area
3 

of treatment. (Id.)

Therefore, the clinical team determined

that

appropriate

RDAP

was

not

for

Petitioner,

and

they

encouraged him to seek nonresidential substance abuse treatment,
as well as sex offender treatment.

(Houseman Decl., Ex. 7.)

Petitioner was expelled from RDAP on July 30, 2015.

(Id.)

The drug abuse program coordinator explained:
The inmate has failed to show progress in
his treatment despite being given feedback
on his behaviors. He was given a formal
formal
[sic]
warning
with
additional
treatment
activities
to
address
his
manipulation, and continued to display the
same
behaviors
after
completing
the
activities. He has received unfavorable 60day reviews and continues to show limited or
no behavioral application.
He takes no responsibility for his actions.
At this time Mr. Burdette is expelled form
[sic] RDAP. He is encouraged to seek out
Non-residential
drug
abuse
treatment
services while on the compound. He can reapply for RDAP after 90 days if he wishes.
(Id., Ex. 8.)
On

August

18,

2015,

Petitioner

“Informal Resolution Form.”
BP-8,

Petitioner

asked

submitted

a

Form

(Moran Decl. ¶5; Ex. 2.)

for

readmission

to

RDAP

BP-8

In the
“at

an

accommodating institution where all activities are on one level.
I am a chronic care inmate, medically prohibited from climbing
and reliant on a
wheelchair/walker to travel any distance. The limitations were
contributing and aggravating factors in my expulsion.”
4 

(Moran

Decl.; Ex. 2.)
A BOP counselor responded on September 20, 2015, stating
that Petitioner was expelled because of his poor performance,
not his medical issues.

(Moran Decl., Ex. 2.)

The counselor

also noted that Petitioner could re-apply to the program after
90 days, and that the program took place on the first floor, so
Petitioner’s limitations were not an impediment.

(Id.)

Petitioner submitted an appeal to the warden on Form BP-9.
(Moran Decl., ¶6; Ex. 3.)
because

BOP

regulations

The appeal was rejected as untimely,
provide

that

a

Form

BP-9

must

submitted within 20 days of the event complained of.

be

(Id.)

Petitioner appealed to the Regional Director, and then the BOP
General Counsel’s office.

(Moran Decl., ¶7; Ex. 4 & 5.)

Both

appeals were rejected, but not denied, based on untimeliness.
(Id.)
II.

DISCUSSION
A.

RDAP

The

BOP

is

charged

with

making

available

“appropriate

substance abuse treatment for each prisoner the [BOP] determines
has a treatable condition of substance addiction or abuse.” 18
U.S.C.

§

3621(e).

Subject

to

the

availability

of

appropriations, the BOP must provide residential substance abuse
treatment

for

3621(e)(1)(C).

all

“eligible”

18

U.S.C.

§

As an incentive for successful completion of the
5 

prisoners.

program, the BOP may, in its discretion, reduce the sentence of
a prisoner convicted of a nonviolent offense by up to one year.
18 U.S.C. § 3621(e)(2)(B).
The

BOP

has

promulgated

statutory requirements.

regulations

to

implement

the

28 C.F.R. § 550.53 (effective March 16,

2009) provides that the inmate must have a “verifiable substance
use disorder,” 28 C.F.R. § 550.53(b)(1), and that the “Drug
Abuse Program Coordinator decides whether to place inmates in
RDAP.”

28 C.F.R. § 550.53(e). BOP Program Statement 5330.11

governs application of RDAP placement.
BOP

Program

Statement

5330.11

2.5.12(d)(1)1

§

provides,

“[i]nmates may be removed from the program by the Drug Abuse
Program Coordinator because of disruptive behavior related to
the
program

or

unsatisfactory

progress

in

treatment.”

Inmates

ordinarily will be given one “formal warning” before expulsion.
Id. § 2.5.12(d)(2).

BOP staff will often provide an inmate with

at least one treatment intervention prior to removal.
B.

Id.

Exhaustion of Administrative Remedies

“Federal prisoners are ordinarily required to exhaust their
administrative remedies before petitioning for a writ of habeas
corpus

pursuant

to

§

2241.”

Moscato

v.

Federal

Bureau

of

Prisons, 98 F.3d 757, 760 (3d Cir. 1996) (citing Bradshaw v.

1

Available at www.BOP.gov.
6 

Carlson,

682

F.2d

1050,

1052

(3d

Cir.

1981)

(per

curiam).

Exhaustion is not required where the petitioner establishes that
it is futile or where the goals of exhaustion would not be met.
Cerverizzo v. Yost, 380 F. App’x 115, 116 (3d Cir. 2010) (per
curiam).

“[A] procedural default generally bars review of a

federal habeas corpus petition absent a showing of cause and
prejudice.”
external
rule.

See Moscato, 98 F.3d at 761.

that

impeded

efforts

to

“Cause” is something

comply

with

the

procedural

Coleman v. Thompson, 501 U.S. 722, 753 (1991).
The

BOP

Administrative

Remedy

Program

is

available

to

inmates confined in institutions operated by the BOP for “review
of an issue which relates to any aspect of their confinement.”
28 C.F.R. § 542.10. For the first step, an inmate must attempt
to

informally

542.13.

resolve

the

dispute

with

staff.

28

C.F.R.

§

If this fails, the inmate may file an administrative

remedy request, Form BP-9, with the warden of the institution,
within twenty calendar days of the date of the event giving rise
to the complaint.

28 C.F.R. § 542.14.

If the warden denies the administrative remedy request, the
inmate may file an appeal with the BOP regional director, on
Form

BP-10,

warden’s

within

response.

twenty
28

calendar

C.F.R.

§

days

of

542.15.

the

date

If

the

of

the

regional

director denies the appeal, the inmate may appeal to the general
counsel of the Federal Bureau of Prisons, on Form BP-11, within
7 

thirty calendar days from the date of the regional director’s
response.

28 C.F.R. § 542.15 “Appeal to the General Counsel

(Central Office) is the final administrative appeal.”

Navarro

v. Shartle, Civ. Action No. 13–7613(RMB), 2014 WL 47937, at *1
(D.N.J. Jan. 7, 2014.)
Respondent asserts that Petitioner did not properly exhaust
because his BP-9 form was not timely.
at 17.)

(Gov’t Resp., ECF NO. 5

He filed a BP-8 on August 17, 2015, challenging his

expulsion from RDAP on July 30, 2015.

(Moran Decl., Ex. 2.)

The BOP responded on September 20, 2015. (Id.)

Petitioner did

not file a BP-9 with the warden until October 14, 2015.
Decl., Ex. 3.)

(Moran

Even if the time to respond to the BP-8 is

excluded, the BP-9 was still untimely.

(Gov’t Resp., ECF No. 5

at 17.)
In

the

petition,

Petitioner

asserted

that

BOP

staff

routinely refuse to issue a BP-9 without proof that a BP-8 was
previously filed, which requires waiting for a response with no
time limit.

(Pet, ECF No. 1 at 7.) Petitioner contends he gave

his completed BP-9 form to Counselor Holterman on October 6,
2015, only sixteen days after the BP-8 was denied.

(Petr’s

Reply, ECF No. 6 at 4-5.)
Petitioner cannot access the staff offices on the second
floor,

so

another

inmate

placed

Petitioner’s

BP-9

staff wing entrance door on the morning of October 6.
8 

under

the

(Id. at

4.)

Petitioner states that any delay in his BP-9 form reaching

the

warden’s

Petitioner.

office
(Id.)

is

attributable

The

BP-10

and

to
BP-11

BOP

staff,

forms

not

were

dismissed as untimely, based on rejection of the BP-9.

also

(Id. at

5.)
The record shows that Petitioner attempted to timely file
his BP-9 form2 on October 6, 2015, but he was unable to deliver
it himself because he is in a wheelchair and did not have access
to the staff offices on the second floor.

The BOP did not

acknowledge receipt of the BP-9 until October 14, 2015. The
untimeliness of Petitioner’s BP-9 caused rejection of each of
his subsequent requests for an administrative remedy.

Thus,

Petitioner has shown cause and prejudice, his necessary reliance
on another person to personally deliver his BP-9 to staff on the
second

floor,

remedies.
C.

excusing

his

failure

to

properly

exhaust

his

The Court will address Petitioner’s claims.
Standard of Judicial Review of Expulsion from RDAP

Respondent

asserts

that

the

BOP’s

individualized

determination to expel an inmate from RDAP is not subject to
judicial review.

(Answer, ECF No. 5 at 13.)

If the Court

chooses to review the RDAP determination, Respondent contends
the

decision

may

only

be

set

aside

if

it

is

arbitrary

2

Petitioner signed and dated the BP-9 form on October 5, 2015.
(Pet., Ex. E, ECF No. 1-2 at 13.)
9 

or

capricious. (Id. at 23.) Additionally, Respondent maintains that
prison inmates do not have a protected liberty interest in RDAP
participation
completing

or

RDAP;

Process claim.
The

Court

in

receiving

therefore,

there

a

sentence
is

no

reduction

constitutional

for
Due

(Id. at 20-21.)
agrees

that

there

is

no

Due

Process

liberty

interest in RDAP participation or a sentence reduction upon RDAP
completion.
Cir.

2009)

See Douvos v. Quintana, 382 F. App’x 119, 122 (3d
(finding

no

protected

interest

under

§

3621(e));

Washington v. Zickefoose, Civ. No. 12-303(RBK), 2012 WL 5247623,
at *3 (D.N.J. Oct. 24, 2012) (RBK) (collecting cases); Meachum
v. Fano, 427 U.S. 215, 226-28 (1976) (a statute which grants the
prison administration discretion does not confer a right on an
inmate).

Therefore, Petitioner does not have a constitutional

challenge to his RDAP expulsion.
18 U.S.C. § 3625, “Inapplicability of the Administrative
Procedures Act,” provides that “the provisions of sections 554
and 555 and 701 through 706 of title 5, United States Code, do
not apply to the making of any determination, decision, or order
under this subchapter.” Although some courts3 have held there is

3

Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011) (“[t]here
is no ambiguity in the meaning of 18 U.S.C. § 3625,” . . . “any
substantive decision by the BOP to admit a particular prisoner
into RDAP, or to grant or deny a sentence reduction for
completion of the program, is not reviewable by the district
court”); Standifer v. Ledezma, 653 F.3d 1276, 1279 n.3 (10th
10 

no judicial review of RDAP determinations under 18 U.S.C. §
3621(e), the Third Circuit has not yet decided the issue.
Thorndike

v.

Hollingsworth,

Civ.

No.

15-2014(NLH),

2016

See
WL

4705443 at *5-6 (D.N.J. Sept. 8, 2016) (collecting cases).
18 U.S.C. 3625 appears to preclude judicial review of a BOP
determination under § 3621 to expel a prisoner from an RDAP
program.

However, because the issue is unsettled in the Third

Circuit, the Court will assume it has jurisdiction to review the
decision under the arbitrary and capricious standard set forth
in the APA at 5 U.S.C. § 706(2). See Anderson v. Schultz, Civ.
Action No. 09-4683 (RMB), 2010 WL 5017352, at *4 (D.N.J. Nov.
23, 2010) (  reviewing individual RDAP determinations using the
arbitrary, capricious or abuse of discretion standard); Fuentes
v.

Samuels,

Civ.

No.

07-2336

(RBK),

2008

WL

442211,

at

*7

(D.N.J. Feb. 14, 2008) (same).
D.

Petitioner’s Claims

Petitioner contends his failure in the RDAP program was due
to his inability to access the upper floors, including the staff
alley,

game

rooms,

exercise

rooms

and

inmate

dorm

rooms.

Cir. 2011) (“To the extent Standifer challenges only the BOP’s
decision regarding his eligibility for RDAP participation, his
argument is expressly foreclosed by 18 U.S.C. § 3625, which
prohibits judicial review under the APA of RDAP placement
decisions.”); United States v. Hughes, Crim. No. 06-377-9, 2012
WL 3627466, at *2 n.3 (E.D. Pa. Aug. 23, 2012) (“We lack
jurisdiction to review the BOP’s individualized determinations
as to RDAP placement and eligibility.”)
11 

(Petr’s Reply, ECF No. 6 at 9-10.)

Furthermore, in his Reply,

Petitioner argued that RDAP staff had resolved to expel him long
before

they

actually

did

so,

motivated

by

bias

because

Petitioner was convicted of transportation of child pornography.
(Id. at 13, 15-16.)
In April 2015, a cellmate reported Petitioner to staff for
discussing child pornography.

(Id. at 11.)

with a locker search, but nothing was found.

Staff responded
(Id.)

Petitioner

explained he was only discussing the harshness of sentencing for
transportation

of

child

pornography.

(Id.)

Petitioner

notes

that by the end of August, all six of the inmates whose lockers
were searched for pornography had withdrawn or been expelled
from RDAP.

(Id. at 12.)

According to Petitioner, there were 38 participants in his
program, which began on April 6, 2015.

(ECF No. 6-1 at 12.)

Petitioner does not state how many of those 38 participants
dropped out or were expelled by August 2016.

This Court finds

that the record does not support Petitioner’s belief that he was
expelled

from

RDAP

based

the

pornography

investigation

and

search.
First,

in

none

of

Petitioner’s

administrative

remedy

requests does he complain that he was expelled based on the
pornography allegation and locker search.
No. 6-1 at 8-10.)

Second, Petitioner did not raise this issue
12 

(Petr’s Reply, ECF

in his petition, but only in his reply brief.

(ECF No. 1.)

Courts need not address arguments raised for the first time in a
reply brief.

See Marte v. U.S., Civ. Action No. 1307259(SDW),

2015 WL 3629540, at *7 n.4 (collecting cases).
Third, three months after starting the treatment program,
Petitioner received a warning.

(ECF No. 5-1 at 17.)

At that

point, he had already been confronted by staff members and peers
alike for his poor response to treatment in the following areas:
isolation,

responsibility,

mollification,

entitlement,

communication

deficits,

justification,

poor/aggressive

language, unreceptive and social rule breaking.
17.)
his

body

(ECF No. 5-1 at

About ten days later, Petitioner received feedback from
peers,

and

they

provided

“examples

of

how

he

tends

to

manipulate, how he isolates himself from the community, how he
is not receptive to any feedback, entitlement, and his poor
investment in treatment.”
expelled
he

from

“had

not

treatment.”

the
met

(Id. at 19.)

program

the

phase

(Id. at 21.)

conclusion

that

at

When Plaintiff was

the

end

expectations

in

of
any

July,
area

of

This evidence strongly supports the

Petitioner

was

expelled

based

on

his

poor

performance in treatment.
Petitioner
hampered
building.

by

his

also
lack

claims
of

his

access

to

the

in

upper

treatment

was

floors

the

of

However, the record shows that all of his treatment
13 

progress

and

group

sessions

occurred

on

the

first

floor,

and

all

television rooms, computer stations, and laundry facilities are
located on the first floor, providing opportunities for peer
interactions.

(Houseman

Decl.,

¶9.)

Additionally,

other

inmates with physical limitations have completed RDAP at FCI
Fort Dix.

(Id.)

Petitioner may not have had an unlimited

opportunity to interact with other RDAP participants, but the
access he was provided was sufficient to allow the interactions
required in the program, if he chose to do so.
The

record

shows

that

Petitioner

did

not

engage

others to the extent required to be successful in treatment.

with
On

July 15, 2015, the clinical team noted his tendency to isolate
and limit his interactions to a few peers with similar beliefs
and

tendencies.

confronted

by

treatment

on

(Houseman

peers

and

several

Decl.,

staff

occasions

Ex.

about

5.)

his

without

He

poor

showing

had

response

been
to

improvement.

(Id.)
On July 24, 2015, his peers provided feedback about his
negative

behaviors

unreceptiveness.
make

progress

described
treatment.”

as

and

including

isolation,

(Id., Ex. 6.)
was

“highly

expelled
treatment

(Id., Ex. 7.)

manipulation

and

Despite a warning, he did not
one

week

resistant

later,
in

when

all

he

areas

was
of

Therefore, the record supports a

rational basis for Dr. Houseman’s decision to expel Petitioner
14 

from

RDAP

for

failure

attitudes and behaviors.

to

progress

in

treatment

due

to

his

See 28 C.F.R. § 550.53(g)(1) (the Drug

Abuse Program Coordinator may remove inmates from the program
due to “unsatisfactory progress in treatment.”)
Petitioner

also

asks

the

Court

transfer him to another RDAP program.4
exclusive

jurisdiction

to

classify

to

order

Respondent

“[T]he Bureau has nearly
and

transfer

prisoners.”

Beckley v. Miner, 125 F. App’x. 385, 389 (3d Cir. 2005).
is

when

the

frivolous or irrational.

Id.

BOP

available

has

only

repeatedly

refused

BOP’s

to

denial

of

a

Relief

transfer

is

Petitioner states only that “The
to

evaluate

request on the basis of the content.”

Petitioner's

transfer

(Petr’s Reply, ECF NO. 6

at 17.)
The record shows that on July 30, 2015, Petitioner was
advised that he could reapply for an RDAP program after ninety
days.

(Houseman Decl., Ex. 8.)

He did not wait 90 days, he

asked for a transfer in his BP-8 request on August 19, 2015.

4

Petitioner cites the Americans with Disabilities Act, in
support of his request to transfer to a different RDAP program
with better wheelchair access.
(Pet., ECF NO. 1 at 11-12.)
Petitioner, however, was admitted to the RDAP program at FCI
Fort Dix, where all treatment was held on the first floor.
Therefore, the ADA is not implicated because Petitioner was not
denied participation in RDAP due to his confinement in a
wheelchair.
See Starego v. New Jersey State Interscholastic
Athletic Ass'n, 970 F.Supp.2d 303, 309 (D.N.J. 2013) (to succeed
on an ADA claim a plaintiff mush show “by reason of his
disability, [he] was denied the benefits of, or excluded from
participation in, such services, programs, or activities, or was
discriminated against by the defendant. . .”)
15 

(Pet., Ex. D.)

In response, he was informed that he could make

a transfer request on October 31, 2015.
in

the

record

showing

that

(Id.)

Petitioner

There is nothing

followed

the

proper

procedure to make a transfer request at the appropriate time.
Petitioner

has

not

demonstrated

that

the

rejection

request for a transfer was frivolous or irrational.

of

his

Therefore,

he is not entitled to relief.
III. CONCLUSION
For

these

reasons,

in

the

accompanying

Order

filed

herewith, the Court will deny the petition because the BOP’s
decisions to expel Petitioner from the RDAP program and to deny
his transfer request were not arbitrary or capricious.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: May 2, 2017

16